Why ObamaCare's Individual Mandate is Unconstitutional (Jones v. United States, 529 U.S. 848)

There seems to be a wide diversity of opinions as to whether the individual Mandate in the recently enacted health care legislation is constitutional or not. I have seen the usual Commerce Clause precedents principally the 1995 Lopez case(which invalidated a portion of the Gun Free Schools Zone Act) and Morrison, in 2000 (which struck down portions of the Violence Against Women Act) cited for the proposition that it is not constitutional. On the other hand, I have seen Commerce clause precedents such as the 2005 case of Gonzales v. Raich (which held that the global, nationwide ban on marijuana was constitutional even as to marijuana grown for personal, medical use) and the 1942 case of Wickard v. Filburn (which sustained on Commerce Clause grounds a New Deal statute limiting the amount of wheat a farmer could grow even for his own personal use).

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

Let me start with my own view, which is that the Commerce Clause has never been, and can never licitly be, construed to permit Congress to REQUIRE activity, economic or otherwise. It may regulate Interstate commerce which is already underway. That is plain from the text of the the interstate commerce clause. The jurisprudence cited above has not, however, been a model of clarity, and none of the cases cited above is closely analogous to the individual mandate in ObamaCare. Morrison and Lopez, which struck down (portions of) the Violence Against Women Act and the Gun Free School Zone Act are qualitatively different factually than the health care mandate. Gonzales and Wickard involved the ACTIVE cultivation of fungible crops (which, despite the plaintiff's protests that they were for personal consumption) could easily have been introduced into interstate commerce, and virtually everyone would concede that interstate agricultural commerce is within the reach of Congress' Commerce power. Again, however, although Gonzales and Wickard appear more analogous at first blush, unlike the Health care mandate, Congress was regulating ACTIVITY in an area (AGRICULTURE) that has traditionally been treated since the time of the framers as subject to Congressional regulation, it being impossible in these two contexts to distinguish between private and public crops.

III. JONES v. UNITED STATES--REGULATION OF COMMERCIAL ENTITIES VERSUS PURELY PRIVATE ONES

This brings me to a much more analogous, and at least from a factual standpoint, persuasive case, which has not(to my knowledge) been cited and which supports the unconstitutionality of the individual mandate here. Moreover, unlike the recent decisions (Lopez, Morrison and Gonzales), which were all 5-4 decisions, this case was a 9-0 decision, authored by Justice Ginsburg in 2000. It is Jones v. United States, 529 U.S. 848 (2000), linked in the first comment below this post.

[Let me begin with one important qualifier. The Court in Jones found that the statute as written did not invoke the full scope of Congress' commerce clause power, which Obamamcare clearly attempts to do, so it was decided on statutory rather than constitutional grounds. I think an analysis of the facts makes this distinction much less significant.]

In 1998, Dewey Jones, of Detroit, tossed a Molotov cocktail into the home of his cousin, James Walker, Jr., in Fort Wayne, Indiana. Walker's home was severely damaged. Subsequently, Jones was convicted in U.S. District Court of violating 18 U.S.C. section 844(i), which makes it a federal crime to "maliciously damage or destroy, ...by means of fire or an explosive, any building... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." The Court of Appeals affirmed Jones's conviction. Before both courts, Jones unsuccessfully argued that section 844(i), when applied to the arson of a private residence, exceeds the authority vested in Congress under the Commerce Clause of the Constitution.

No. In a unanimous opinion, delivered by Justice Ruth Bader Ginsburg, the Court held that an owner-occupied residence not used for any commercial purpose does not qualify as property "used in" commerce or commerce-affecting activity, such that arson of such a dwelling is not subject to federal prosecution under section 844(i). Justice Ruth Bader Ginsburg wrote for the Court that "[w]ere we to adopt the Government's expansive interpretation of section 844(i), hardly a building in the land would fall outside the federal statute's domain."

The Court reversed the conviction, focusing on the phrase in 844(i) "used in", and did not squarely reach the issue whether, had Congress not used the qualifying phrase "used in" but had merely criminalized the destruction of "any building...affecting interstate commerce" words that, when unqualified, signal Congress’ intent to invoke its full authority under the Commerce Clause, the same result would have obtained.

The interesting part of the opinion from the standpoint of the individual mandate is twofold: a) the parts of the opinion that focuses repeatedly on "activity"(as opposed to inactivity) affecting interstate commerce; and b)the broad sweep that such a mandate would have if it applied to every person (as the Government in Jones sought to apply it to every private residence) in the United States. The Court observed:

"Were we to adopt the Government’s expansive interpretation of §844(i), hardly a building in the land would fall outside the federal statute’s domain. Practically every building in our cities, towns, and rural areas is constructed with supplies that have moved in interstate commerce, served by utilities that have an interstate connection, financed or insured by enterprises that do business across state lines, or bears some other trace of interstate commerce."

The Court continued to use the term "used in" throughout the opinion to avoid, as it said, a full blown Lopez-style constitutional analysis. But it is very difficult to see how the absence of the phrase "used in" would have altered the result in Jones. Its presence merely enabled the Court to decide the case on statutory, rather than constitutional, grounds.

Congress in the PPACA(ObamaCare) makes the following findings, with regard to the individual mandate:

The individual responsibility requirement provided for in this section (in this subsection referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph

(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following: (A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.

"An applicable individual shall for each month beginning after 2013 ensure that the individual,

and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month."

Congress is authorized to regulate commerce. Commerce is an activity, defined as "the buying and selling of goods, especially on a large scale, as between cities or nations." In ObamaCare, Congress makes a finding that the mandate to purchase private insurance "regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased." In other words, Congress redefines commerce and activity in such a way that the behavior regulated (or rather required) is neither commerce nor activity. It is difficult to see how the Court can credibly permit Congress to engage in such a stark redefinition of terms which are universally understood to mean something entirely different. It is even more difficult to believe that they would permit such a redefinition of terms in the Constitution as a vehicle for Congress to do what it has never done before, that is: to require individuals to engage in private commercial transactions, of Congress' choosing, with other individuals.

The important lesson in Jones is the distinction that the Court drew between commercial buildings and private residences. Private residences simply lack the connection to interstate commerce that would trigger Congress' power to regulate activity with regard to them, and this is clear from the Court's ruling, even though the holding is on narrower grounds.

Finally, it is impossible to escape the analogy between a private residence and a private individual. Like private residences, private individuals per se lack the connection to interstate commerce that would trigger Congress' power to regulate them. If the Court was so troubled by the extension of Congress' Commerce Clause reach to ACTIVITY as egregious as a bombing involving a private residence, it should be a fortiori even more troubled by the extension of that same regulatory authority to the INACTIVITY (i.e.-the desire to be left alone) of private individuals. Unlike private residences, with regard to which the court labored so hard in Jones, private individuals (and the states) are clothed with all rights under the Ninth Amendment (and Tenth) Amendments not specifically granted to the federal government. Only a complete redefinition of the terms "commerce" and "activity", a redefinition to which the unanimous court in Jones would seem hostile, would save the individual mandate from the ash heap of constitutional history.

The current state of the law, which we must unfortunately confront, is that if you engage in an activity that substantially affect interstate commerce, you are within the reach of Congress’ regulatory power.

Understood. The law, arrived at via discernment of unpublished language emanating from the special ink or secret sauce used to draft our Constitution by clairvoyant jurists' preconceptions is the problem of course.

There is at least one SCOTUS justice willing to apply his best understanding of our Constitution, previous ill conceived precedent be damned. IMO, Clarence Thomas seems to always gets it right whereas one of our conservative champions Scalia has broken into the koolaid locker on at least one occasion(Gonzalez/Raich). But don't get me wrong here. I don't do weed or even drink for that matter but to stretch ANY part of our Constitution to include regulation of a few pot plants in somebody's back yard is just inconceivable to me. The social ramifications on the other hand are a different matter altogether...

...I think we ought to rebut by noting that no one is compelled to accept Medicare...

An aside, do you think the passage of Medicare itself was Constitutional, whether voluntary or not? And what effect did it have on the healthcare insurance industry? Is it not pretty much a foregone conclusion that Medicare is a better "deal" for seniors than private insurance programs? And just what is that little Medicare "tax" I used to pay before I retired? Was social security Constitutional or necessarily a good idea since it discourages many people from planning for their own retirements? Which coincidentally takes what would be free market $$$'s and puts them in the hands of the feds.

“And just what is that little Medicare “tax” I used to pay before I retired? Was social security Constitutional or necessarily a good idea since it discourages many people from planning for their own retirements? Which coincidentally takes what would be free market $$$’s and puts them in the hands of the feds.”

Medicare drove up the cost of health care. Whenever the Government gets involved in something, costs go up because the government is inefficient.

That said, Seniors should sue to set aside these cuts. They paid into the program expecting to get health care. What will be offered under ObamaCare will not constitute health care. The cuts will be so draconian as to represent a denial altogether. I think they would have standing; They might not win, but it would spotlight what the real agenda is: rationed care for seniors and...yes...death panels.

You're asking me about blue Ray and I am still in the 8-track age. Yes I believe that Medicare is unconstitutional as an improper extension of federal power beyond that provided for in the enumerated powers. I think it is interesting that the court is not necessarily likely to see Obama care as a bridge too far but as a logical extension of Medicare, which they regard, of course, as constitutional. It is an object lesson in how the Constitution has come step-by-step to mean something 180° at variance with its original intent.

I believe that Medicare has had an adverse effect on the cost of health care as borne by private insurers because the system pushes the costs off onto the private sector. Both Social Security and Medicare are Ponzi schemes in the sense that there is no pay as you go and, worse, there were no funds set aside as we went.

I think it is as unconstitutional as Medicare and I'm saving my 8 tracks.

Whenever the Government gets involved in something, costs go up because the government is inefficient.

Couldn't agree more!

The cuts will be so draconian as to represent a denial altogether.

I think it's debatable at this point if Medicare, whose cuts are a ways down the road, will EVER happen. Like the unions' Cadillac plans, there's no way of knowing whether a "Cadillac Tax" will ever happen. The unions don't seem to be that concerned about it. I suspect seniors feel pretty much the same way. Who would DARE cut bennies to the largest voting bloc in the country??? They'll leave the wreckage behind for future Pubbie congresses to deal with. And so it goes...

One can, and should, address one's worries and concerns to God, as it is ultimately He would grants dispensation. Again, I don't think that the sight itself would - or should - sway the Court, but asking the Good Lord to sway the hearts of the justices so that they may do good and not evil is perfectly legitimate - God knows no conflicts of interest and cannot be but perfectly impartial as respects justice and fairness. I think that it would be a good idea.

One more thing...Medicare should be a guarantee for those who paid into it, but it should be phased out for those under 40 and eliminated. it is the only way to defuse the ticking time bomb of costs and to allow the private sector to work its magic, which it will certainly do if the Government gets out of hte way.

Medicare should be a guarantee for those who paid into it, but it should be phased out for those under 40 and eliminated. it is the only way to defuse the ticking time bomb of costs and to allow the private sector to work its magic, which it will certainly do if the Government gets out of hte way.

Absolutely agree with this. Any time I propose such even here on FR it's met with a large yawn or mixed response at best. Seems even Freepers are not all that keen on eliminating this program that Gokhale-Smetters(pdf) said some years ago would bring us to the abyss.

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